The defendants, Leonard Kincaid and James Mitchell, Jr., were charged with rape in violation of section 11-1(a) of the Criminal Code, and with the offense of contributing to the sexual delinquency of a child in violation of section 11-5 of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, pars. 11-1(a) and 11-5). After a bench trial Kincaid was found guilty of rape and sentenced to the penitentiary for a term of not less than 4 nor more than 12 years. James Mitchell, Jr., was found guilty of contributing to the delinquency of a child in that he attempted an act of sexual intercourse against her will. The common-law record states that Mitchell was found guilty of "contributing to sexual intercourse of a child in manner and form as charged in the indictment." Mitchell was sentenced to the House of Correction for 1 year. Both defendants have appealed.

The issues on appeal are whether Kincaid was found guilty of rape beyond a reasonable doubt; whether there was reversible error due to an alleged variance between the indictment of Mitchell and the findings of the trial judge; whether Kincaid was denied a hearing in mitigation; whether the trial judge abdicated his discretion in sentencing Kincaid; and whether section 11-1(c) of the Criminal Code is constitutional.

The victim testified that on September 7, 1971, at approximately 9:30 P.M., she and a friend went to a restaurant at 103rd Street and Michigan Avenue in Chicago. After leaving the restaurant the friend left and the victim started to walk to her home located on State Street, where she lived with her mother. As she walked west on 103rd Street she saw a green Thunderbird in which sat two people whom she knew as Mitch and Kincaid. She had known each of them for about 1 year. She identified both defendants in open court.

The victim entered the car to be driven home. When they passed the intersection of 103rd and State Streets, she said, "I thought you were going to take me home; why didn't you all turn down State Street?" They said nothing and Kincaid grabbed her by the neck. She tried to climb over Kincaid and open the window but could not roll it down. When she tried to fight him he grabbed her legs.

The victim testified that the car stopped at Bishop and 108th Streets and Mitchell got out; she tried to get out behind him but Kincaid held her arm. When Mitchell returned to the car he and Kincaid forced her into the back seat and removed her pants and underpants. She was crying and attempted to push Kincaid away with her hands; he put his fingers into her vagina, and later put his penis into her vagina and was going up and down for about 15 minutes. When Kincaid finished he got out of the car and she started to get up, but Mitchell climbed around to the back seat and pushed her down. He put his penis into her vagina and was going up and down for about 10 or 15 minutes; she was crying and was scared. On cross-examination the victim said Mitchell stuck his penis into her vagina and was going up and down, but she did not know whether his penis was soft or hard.

The victim testified that she was allowed to put on her shorts and pants; that when she got out of the car to get into the front seat she tried to run but Kincaid grabbed her by the wrist and pushed her back into the car; and that they drove back to 103rd and State Streets, where she got out and ran into the house. She said she told her mother what had happened and the police were called. Later, when she took off her clothes while being examined at Roseland Community Hospital, she noticed that her pants "had white stuff in the seat."

The victim further stated that she was not and had never been married to Mitchell or Kincaid and had never agreed to have sexual intercourse with either of them. She said she was 16 years old on September 7, 1971, and that it was the first time she had had sexual intercourse.

The victim's mother testified that her daughter left the house to go to the store at about 10 P.M. on September 7, 1971; that she returned home at about 11:45, crying, and said she had been raped. The police were called and they took the girl to the Roseland Community Hospital for examination. She was also examined by Dr. Walters, the family doctor, on September 9.

Police Officer John Carioscia testified that on September 7, 1971, at 11:59 P.M., he responded to a call and talked to a young woman and her mother; he then took them to the Roseland Community Hospital where the girl was examined by Dr. Hernandez. On cross-examination Carioscia testified that the girl's clothes were in a mess and she was in a slight state of shock, and he told the hospital personnel he had a rape victim. On redirect examination Carioscia testified that the girl told him she knew the people who had assaulted her and gave him the names Kincaid and Mitch; that one lived in Princeton Park and one in Morgan Park, and that she had known them from school.

It was stipulated that if Dr. Hernandez was called to testify he would state that on September 8, 1971, he had occasion to examine the victim at Roseland Community Hospital; that he made a vaginal examination with a smear from the victim and that tests made of the smear showed positive presence of spermatozoa. It was further stipulated that if Dr. J. Elliott Walters was called to testify he would state that on September 9, 1971, he examined the victim at his office; that he conducted a pelvic examination which failed to reveal any evidence of physical trauma; and that the patient was being treated for vaginitis.

It was further stipulated that at the time of trial Kincaid was 20 years old and Mitchell was 21 years old.

Each of the defendants and two other defense witnesses testified that during the night of September 7, 1971, Kincaid and Mitchell attended a party in Markham, Illinois, during the entire period the victim testified she was with them, which included the time she was allegedly raped. Both defendants denied raping the victim, denied that they were with her that evening, and denied that they were in any of the places she claimed they were during that evening.

The trial judge, in commenting on the testimony, stated that in his opinion the victim was telling the truth, and that he did not believe the testimony of Kincaid and Mitchell or their alibi witnesses. He further stated that in his opinion Kincaid "committed rape on the young lady"; that Mitchell was not guilty of rape; that it is not clear, concise and convincing that Mitchell inserted his penis; that there was no penetration; that there was lewd fondling and touching; that he attempted an act of sexual intercourse against her will; and that ...

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